Stone Leather Co. v. Henry Boston & Sons

• Decision Date: 09 January 1920
• Citation: 234 Mass. 477,126 N.E. 46
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: STONE LEATHER CO. v. HENRY BOSTON & SONS, Limited, et al.

234 Mass. 477

126 N.E. 46

STONE LEATHER CO.

v.HENRY BOSTON & SONS, Limited, et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1920.

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Suit by the Stone Leather Company against Henry Boston & Sons, Limited, and the Boston Hide & Leather Company and others, resulting in a ruling adverse to plaintiff. On reservation and report to the Supreme Judicial Court. Decree ordered dismissing the bill without prejudice to an action at law by plaintiff.

Arthur A. Sondheim and James J. Gaffney, both of Boston, for plaintiff.

Dunbar, Nutter & McClennen, of Boston (George R. Nutter and Greta C. Coleman, both of Boston, of counsel), for defendant Boston Hide & Leather Co.

PIERCE, J.

This is a suit in equity under the provisions of R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, and St. 1910, c. 171, §§ 13, 14, to reach and apply certain shares of corporate stock to the payment of the non-judgment debt alleged in the plaintiff's bill to be due to it from the principal defendnat. The bill also seeks under St. 1907, c. 582, §§ 26, 27, 43, to reach and apply certain merchandise ‘in the hands, possession or control’ of the Boston Hide & Leather Company to the payment of the same debt.

[1] The principal defendant filed a motion to dismiss, alleging no service had been made upon it; and also, filed a demurrer objecting to the jurisdiction of the court. After hearing, the motion was denied and the demurrer overruled. From this order and decree the defendant appealed, and subsequently waived both appeals. The bill was taken pro confesso against the principal defendant upon its failure to answer over as required by equity rule 11 of the superior court. The general appearance of the principal defendant, resulting from the waiver of its appeals and the decree pro confesso, upon its failure to answer, concluded it as to all objections as to service or want of service, as also from the claim that the court was without jurisdiction, because the plaintiff had an equally plain and adequate remedy at law. Dearth v. Hide & Leather National Bank, 100 Mass. 540;Page v. Young, 106 Mass. 313;Jones v. Keen, 115 Mass. 170;Crocker v. Dillon, 133 Mass. 91, 102. The decree pro confesso also operates as an admission of the truth of all material and wellpleaded allegations which establish the right, if any, of the plaintiff against the defendants.

The plaintiff discontinued as to all defendants except the principal defendant and the Boston Hide & Leather Company. The last named defendant duly filed an answer to the several allegations of the bill, and the case came to a hearing before a justice of the superior court and a commissioner was appointed to report the testimony. The presiding judge upon the reported evidence warrantably found that the principal defendant owed the plaintiff the amount with interest set forth in paragraph one of the bill of complaint. Upon sufficient evidence he also found that the principal defendant, ‘at the time of the filing of the bill, did not own or have any financial interest whatsoever in the shares of the capital stock of the Boston Hide & Leather Company;’ and upon adequate evidence he further found that ‘at the time of the hearing on the merits, the defendant Henry Boston & Sons, Limited, had in...